These Terms and Conditions govern Customer’s use of SaaS software services (“SaaS Services”) provided by Seso Inc. (“Supplier”), a Delaware corporation, which will do business in California as Seso Labor, Inc., with a principal place of business at 1003 Lombard Street, San Francisco, CA 94109.
1.1 “Agreement” means these Terms and Conditions and applicable Order Forms.
1.2 “Customer” means the organization that purchased SaaS Services pursuant to an Order Form.
1.3 “Customer Data” means all data submitted, stored, posted, displayed , or otherwise transmitted by or on behalf of Customer or any User and received and analyzed by the SaaS Services.
1.4 “Documentation” means printed, paper, electronic or online user instructions and help files made available by Supplier to Customer for use with the SaaS Services, as may be updated from time to time by Supplier.
1.5 “Order Form” means Supplier’s ordering document that references these Terms and Conditions.
1.6 “Subscription Term” means the duration of Customer’s subscription to the SaaS Services as set forth on an Order Form.
1.7 “Users” means Customer’s employees and consultants (a) who are authorized by Customer to access and use the SaaS Services and (b) who have been supplied user identifications and passwords for such purpose by Customer (or by Supplier at Customer’s request).
2. ACCESS, USE AND RESTRICTIONS.
2.1 Access and Use. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, Supplier hereby grants to Customer, during the Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use the SaaS Services under the applicable Order Form in accordance with the Documentation in each case solely for Customer’s internal business purposes and not for the benefit of any other person or entity. Customer agrees that its purchase of the SaaS Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Supplier regarding any future functionality or features.
2.2 Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the SaaS Services; (b) modify, translate, or create derivative works based on any element of the SaaS Services or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the SaaS Services; (d) use the SaaS Services for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation of the SaaS Services without Supplier’s prior written consent; (g) use the SaaS Services for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the SaaS Services; or (i) attempt to gain unauthorized access to the SaaS Services or their related systems or networks.
2.3 Reservation of Rights. Except as expressly granted in this Agreement, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in this Agreement are reserved by Supplier.
3. CUSTOMER OBLIGATIONS.
3.1 Acceptable Uses. Customer shall be solely responsible for its actions and the actions of its Users while using the SaaS Services. Customer agrees to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the SaaS Services, and Customer many not use the SaaS Services for illegal, fraudulent, unethical or inappropriate purposes.
3.2 User Accounts and Passwords. Supplier will issue to Customer user logins and passwords for each of its Users authorized to access and use the SaaS Services. Customer shall be, and shall ensure that each of its Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Customer agrees to immediately notify Supplier of any unauthorized use of any account or login and password issued to Customer’s Users, or any other breach of security known to Customer. Customer is responsible for all use of Customer’s User accounts, and Customer is responsible for compliance by each User with the terms of this Agreement.
3.3 No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the SaaS Services.
3.4 Customer Data and Account Settings. The SaaS Services allow Customer and Users to submit, store and delete Customer Data. In addition, the SaaS Services allow Customer and Users to manage and edit certain information through their account settings page.
4. AVAILABILITY. Subject to the terms and conditions of this Agreement, Supplier will use commercially reasonable efforts to make the SaaS Services available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Supplier will use commercially reasonable efforts to provide at least 24 hours advance notice, and (b) routine maintenance times and as otherwise specified bySupplier, and (c) any unavailability caused by circumstances of Force Majeure described in Section 12.10. Certain enhancements to the SaaS Services made generally available at no cost to all subscribing customers during the Subscription Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to the SaaS Services may require the payment of additional fees, and Supplier will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. This Agreement will apply to, and the SaaS Services includes, any bug fixes, error corrections, new builds, enhancements, updates, upgrades and new modules to the SaaS Services subsequently provided by Supplier to Customer hereunder.
5.1 Confidential Information. “Confidential Information”means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information. Confidential Information of Supplier shall include, without limitation, the SaaS Services and the Documentation. Confidential Information of Customer shall include, without limitation, Customer Data. Confidential Information also includes all summaries and abstracts of Confidential Information.
5.2 Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. Subject to Section 6.3 and Section 6.4, the Receiving Party shall, at all times, both during the Subscription Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it, and the Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. Subject to Section 6.3 and Section 6.4, the Receiving Party shall not disclose or sell Confidential Information of the Disclosing Party to any person or entity other than disclosing to its officers, employees and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.
5.3 Exceptions to Confidential Information. The obligations set forth in Section 5.2 shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
5.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
6. PROPRIETARY RIGHTS.
6.1 SaaS Services. As between Supplier and Customer, all right, title and interest in the SaaS Services and any other Supplier materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the SaaS Services, including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by Supplier or Supplier’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Supplier all evaluations, ideas, feedback and suggestions made by Customer to Supplier regarding the SaaS Services (collectively, “Feedback”) and all intellectual property rights in the Feedback.
6.2 Supplier Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Supplier, whether solely or jointly, and all intellectual property rights therein, shall remain the sole and exclusive property of Supplier.
6.3 De-Identified Data and Aggregated Data. Customer acknowledges and agrees that the SaaS Services provided toCustomer include the improvement of such SaaS Services, and accordingly, Supplier may use Customer Data, including any personal information, for the purposes of improving the SaaS Services. Supplier may, unless prohibited by applicable law, de-identify and/or anonymize Customer Data and any other data and information relating to Customer’s use of the SaaS Services (with the resulting de-identified or anonymized data and information being referred to herein as “De-identified Data”) and aggregate such De-identified Data, including without limitation aggregation with other information received by Supplier from its other customers and from other data sources (collectively, “Aggregated Data”) for the purpose of providing the SaaS Services and enhancing the features, functions, and performance of the SaaS Services. All De-identified Data and Aggregated Data shall be owned solely and exclusively by Supplier. Customer further acknowledges and agrees that De-identified Data and Aggregated Data cease to be personal information or Customer’s Confidential Information, and Supplier may, during and after the term of the Agreement, use, reproduce, disclose, distribute, sell and otherwise commercialize such De-identified Data and Aggregated Data.
6.4 Contacting Individual Workers. Customer acknowledges and agrees that Supplier may use Customer Data provided by or on behalf of Customer to contact and work with individual workers whose contact information is submitted to the SaaS Services or is otherwise disclosed to Supplier.
7. FEES AND PAYMENT.
7.1 Fees. Customer agrees to pay all fees specified in an Order Form using one of the payment methods Supplier supports. Except as otherwise specified in this Agreement or in an Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and fees paid are non-refundable. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
7.2 Invoices and Payment. Except as otherwise specified in this Agreement or in an Order Form, all fees will be invoiced in advance. Except as otherwise set forth in an Order Form, Customer agrees to pay all invoiced amounts within 30 calendar days of the invoice date.
7.3 Overdue Charges. If Supplier does not receive fees by the due date, then at Supplier’s discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
7.4 Suspension of SaaS Services. If any amounts owed by Customer are ten or more days overdue, Supplier may, without limiting Supplier’s other rights and remedies, suspend Customer’s and its Users’ access to the SaaS Services until such amounts are paid in full.
7.5 Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority there of including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with this Agreement or any instrument, or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. Fees and charges imposed under this Agreement do not include Taxes except as otherwise provided herein. Customer shall be responsible for all of such Taxes. If, however, Supplier has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this Section, Customer shall promptly pay the Taxes invoiced by Supplier unless Customer has furnished Supplier with valid tax exemption documentation regarding such Taxes. Customer shall comply with all applicable tax laws and regulations.
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
8.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations here under, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
8.2 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 8,THE SAAS SERVICES ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE SAAS SERVICES IS AT ITS OWN RISK. SUPPLIER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON INFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY SUPPLIER IN SECTION 8 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH THE SAAS SERVICES IS LICENSED AND NOT SOLD.
NO AGENT OF SUPPLIER IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SUPPLIER AS SET FORTH HEREIN. SUPPLIER DOES NOT WARRANT THAT: (A) THE USE OF THE SAAS SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B)THE SAAS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SAAS SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SAAS SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SAAS SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SAAS SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SAAS SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SUPPLIER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
9.1 Supplier Indemnity.
(a) General. During Subscription Term, Supplier, at its expense, shall defend Customer and its officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the SaaS Services infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Third-Party Claim. Supplier’s obligations under this Section are conditioned upon (i) Supplier being promptly notified in writing of any claim under this Section, (ii) Supplier having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at Supplier’s expense and reasonable request) in the defense of such claim. In no event shall Customer settle any claim without Supplier’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim and to participate in the defense of the claim, subject to Supplier’s right to control the defense and settlement.
(b) Mitigation. If any claim which Supplier is obligated to defend has occurred, or in Supplier’s determination is likely to occur, Supplier may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the SaaS Services, (b)substitute a functionality equivalent, non-infringing replacement for such the SaaS Services, (c) modify SaaS Services to make it non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to Customer on a pro-rated basis any pre-paid and unused fees for the SaaS Services.
(c) Exclusions. Notwithstanding anything to the contrary in this Agreement, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data, (ii) use of the SaaS Services in combination with any software, hardware, network or system not supplied by Supplier where the alleged infringement relates to such combination, (iii) any modification or alteration of the SaaS Services other than by Supplier, (iv) Customer’s continued use of the SaaS Services after Supplier notifies Customer to discontinue use because of an infringement claim, or (v) Customer’s violation of applicable law.
(d) Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF SUPPLIER WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SAAS SERVICES OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF SUPPLIER WITH RESPECT THERETO.
9.2 Customer Indemnity. Customer shall defend Supplier and its licensors and their respective officers, directors and employees (“Supplier Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data (and the exercise by Supplier of the rights granted herein with respect there to) infringes, misappropriates or violates any third party’s intellectual property rights or other rights; (b) Customer’s use or alleged use of the SaaS Services other than as permitted under this Agreement; or (c) arising from the occurrence of any of the exclusions set forth in Section 9.1(c). Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Supplier providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. In no event shall Supplier settle any claim without Customer’s prior written approval. Supplier may, at its own expense, engage separate counsel to advise Supplier regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
10. LIMITATION OF LIABILITY.
10.1 No Consequential Damages. NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUPPLIER OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SAAS SERVICES OR THE RESULTS THEREOF. SUPPLIER WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SAAS SERVICES.
10.2 Limits on Liability. NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID BY CUSTOMER TO SUPPLIER UNDER THIS AGREEMENT DURING THE PERIOD OF 12 MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
10.3 Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 10 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
11. TERM AND TERMINATION.
11.1 Term. The term of this Agreement starts on the date parties agree to their first Order Form and continues until all Order Forms have expired or have been terminated as allowed under this Agreement. Customer’s Subscription Term to SaaS Services is set forth in the applicable Order Form.
11.2 Termination for Cause. A party may terminate this Agreement (and all Order Forms) or a specific Order Form upon written notice to the other party in the event the other party commits a material breach of this Agreement and does not remedy such breach within 30 days after receipt of written notice of such breach.
11.3 Effects of Termination. Upon any expiration or termination of an Order Form, (a) Customer’s use of and access to SaaS Services under that Order Form shall cease, and (b) all fees and other amounts owed to Supplier under that under that Order Form shall be immediately due and payable by Customer. Any termination of this Agreement also terminates all Order Forms.
11.4 Survival. The termination or expiration of this Agreement for any reason shall not affect a party’s rights or obligations that expressly or by their nature continue and survive (including, without limitation, the payment terms and the provisions concerning ownership, confidentiality, limitation of liability, indemnity and the warranty disclaimers).
12.1 Notices. Supplier may give notice to Customer by means of a general notice through the SaaS Services interface, electronic mail to Customer’s e-mail address on record with Supplier, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Supplier. Customer may give notice to Supplier by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Supplier at [insert], Attention: [insert]. Notice shall be deemed to have been given upon receipt or, if earlier, two business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
12.2 Governing Law. This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form. Any disputes arising out of or in connection with this Agreement, including but not limited to any question regarding its existence, interpretation, validity, performance or termination, or any dispute between the parties arising from the parties’ relationship created by this Agreement, shall be heard in the state and federal courts located in [insert], California, and the parties hereby consent to exclusive jurisdiction and venue in such courts.
12.3 Publicity. Supplier has the right to reference and use Customer’s name and trademarks and disclose the nature of the SaaS Services provided hereunder in each case in Supplier business development and marketing efforts, including without limitation Supplier’s web site.
12.4 Export. The SaaS Services utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the SaaS Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S.Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the SaaS Services, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The SaaS Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Supplier and its licensors make no representation that the SaaS Services is appropriate or available for use in other locations.
12.5 Waiver. No term or provision of this Agreement shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
12.6 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
12.7 Assignment. Customer may not assign its rights or delegate its obligations under this Agreement to any third party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Customer), without the prior written consent of Supplier, such consent not to be unreasonably withheld, and subject to Customer paying any applicable transfer or set-up fees. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
12.8 Relationship of the Parties. Supplier is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
12.9 Attorneys’ Fees. In any action to enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
12.10 Force Majeure. Except for Customer’s payment obligations, neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, disease or viral outbreak or epidemic or pandemic, acts of God or the public enemy; epidemics or pandemics; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused.
12.11 Entire Agreement. This Agreement, including all exhibits, all Order Forms and all documents referenced herein, constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. If there’s a direct conflict between provisions in this Agreement, the conflict will be resolved by giving precedence to the provision as it appears in the highest-ranked document in the following order: (a) the relevant Order Form and (b) the body of these Terms and Conditions.